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June 2008

Litigation Section News

 

**IMPORTANT NOTICE ABOUT E-FILING EMAIL NOTIFICATION**

 Do not rely solely on email notification that a document has been electronically filed in your case!  As explained in the recent LexisNexis File & Serve newsletter, “Email Notification” is a feature that allows a subscriber to receive an email notification that a document has been e-served and is available for viewing in the subscriber’s online LexisNexis inbox.  According to LexisNexis, the email notification does not constitute service on the subscriber and is provided only as a convenience.   Users should not rely only on email notification due to the fact that the courts and LexisNexis cannot verify successful delivery of email or if a recipient has read an email, nor can email providers be monitored for how spam is controlled, how junk mail filters may be applied, or if an email box may be too full to receive incoming messages.  Therefore, it is the responsibility of the subscriber to check his/her online inbox to view e-filed and e-served documents.

REPORT FROM THE STATE COURT ADMINISTRATOR
AND MORE E-FILING ISSUES

 State Court Administrator Jerry Marroney attended the April meeting of the Litigation Section Council.  The following is a summary of information he shared during his update on court administration, including a number of issues related to electronic filing:

• Pro se parties are still not required to use the e-filing system.  Judges would prefer that all parties use it, but presently there cannot be a mandate for pro se litigants to e-file their court documents.  Colorado is not set up for the litigants to pay for Lexis Nexis services.  State judicial would like LexisNexis to develop a system for pro se parties to use a terminal at each courthouse for e-filing, but this is a wish list for the future.  With the proper facilities, such e-filing could be mandated, except for indigent parties.
 
• Logistical Issues: There are meetings with all states that use Lexis for establishing priority projects for LexisNexis users.  Colorado is the only state-run e-filing system that is mandatory in all district courts.  If the e-filing system were run “in-house” by the State of Colorado, not by Lexis, it would probably require an initial outlay of a couple of million dollars and require additional staff; however, there would probably be long-term savings.  Federal e-filing in Colorado is exclusively an in-house system run by the feds, which is less costly to operate and assesses no fees.

• Jerry Marroney may be e-mailed to convey questions and problems to three Lexis Nexis representatives, who cover Colorado.

• Lexis Nexis costs are controlled by a contract with the Judicial Department and any increases in costs must be approved.

• Colorado pays lower fees to Lexis Nexis than other states

• Providing links to previously filed and related documents will soon be mandatory (e.g., link to a motion when filing a response).  The link requirement is now a local rule in the 14th Judicial District. 

• Colorado averages one IT technician for every 100 judges.   The federal courts have one technician per judge.

• Judge Davidson has approved designating the entire electronic record on appeal, avoiding the inadequate designations which apparently occur in 95% of civil cases.   If all documents in a case are e-filed, designating the entire electronic record may be possible at this time.  However, practitioners must be careful to recognize documents and items which may not be in the electronic file, such as: jury instructions, certain exhibits, attachments and questions submitted by jurors.  It might be necessary to scan such documents into the system.  The Court of Appeals typically does not want hard exhibits unless specifically requested.

• Counties typically own their court buildings, but county commissioners are apparently interested in having the State take them over.  In Colorado Springs, the County has, in effect, closed the courthouse on the last Friday of each month, in spite of a State statute requiring courts to remain open. 

• The State no longer pays to maintain law libraries; the lone exception is the Supreme Court law library.

• New Judicial Complex (2008 legislation) and Judicial Budget at a Glance:
The proposed Colorado Judicial Center will occupy an entire square block and include the Supreme Court, the Court of Appeals, the Attorney General’s Office, the Public Defender’s Office, the Judicial Department, among other entities.  It is to be constructed on the site now occupied by the Appellate Courts and the Colorado History Museum (which will be moving one block south).   It will probably not be built until approximately 2014.  There will be a 30-year plan for the building and an exit plan. 

Additional funding has been approved for:

48 more probation officers
    
28 more clerks for 19 more judges

Additional Public Defender staff and an additional public defender attorney in the 13th Judicial District.

Attorney fees at $65 an hour for ADC (alternate defense counsel) and other court appointments. 

There will be an increase in judges’ pay of approximately $10,000 per year across the board.

Compared to other states, Colorado has a low budget for providing legal services for the indigent. However, the legislature approved an additional $250,000 for legal services for victims of domestic violence (raising the total state contribution to $750,000.

NEW CLASS ACTION SUBSECTION

 The Litigation Section Council has approved the formation of a new subsection for class actions and mass torts.  Paul Karlsgodt is the chair of the new subsection.  For additional information, contact gmartin@cobar.org.

REPORT FROM THE FEDERAL BENCH

 Chief Judge Nottingham of the U.S. District Court for Colorado attended the March meeting of the Litigation Section Council and provided an update on the status of the federal courts in Colorado.  The following are highlights from his report:

• As of April 2008, the U.S. District Court for Colorado will be short 3 judges, even though 7 judgeships have been authorized since 1984.  In 2000, a judicial conference for U.S. District Court judges recommended 2 additional judges for the District of Colorado, but Congress has not yet acted on that recommendation.  Based on population growth and workload, the district should really have authorization for 9 judges at this time.  Judge Nottingham does not expect additional judges to be appointed before late 2009.  In the meantime, he expects the district will receive some assistance from Wyoming district court judges, who have a smaller case load.  However, he warned that practitioners can expect a backlog, particularly in the resolution of dispositive motions in civil cases.

• He does not expect a judgeship to be created for Colorado Springs or Durango in the foreseeable future.  The present trend is to centralize judges in one location to facilitate face-to-face dialogue.  There will be greater effort for judges to travel to handle cases in Durango and Grand Junction.  Videoconferencing is also an option for non-metro Denver lawyers who have hearings with judges sitting in Denver.  For example, a motion for summary judgment could be heard with attorneys participating from the Grand Junction courthouse with a judge sitting in Denver, without any additional cost to the litigants.

• Attorneys must file electronically with the court, but pro se litigants are still allowed to file paper documents which are then electronically scanned into the system by the court clerks.

• There is no current plan to streamline or standardize the judges’ individual practice rules, but more regularity may result from regular meetings among the judges. 

• Federal courts have still not approved the unbundling of cases because it violates Rule 11.  Therefore, limited appearances and ghost writing are prohibited in federal court.